Proceedings of the Workshop - United Nations Office for Outer ...

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192 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONsettlement mechanisms to be found in recent bilateralinvestment protection treaties, and in multilateralinstruments, such as the NAFTA agreement, theEnergy Charter Treaty, or the (now shelved)OECD draft Agreement on Investment (MAI).Commentary PaperV.S. ManiThe summary of the paper indicates that it focuses on“two main aspects o f the problem of developingadequate international regulatory frameworks in view ofthe commercialization and privatization of outer spaceactivities". The outer space activities covered,principally, are: "satellite communications launchingservices and, to a certain degree, remote sensing".The role and legal status of nonstateactorsIt is submitted that the Reparations case (1949) laysdown a functional approach to the concept ofinternational personality of entities under internationallaw. Therefore the relevant questions to ask are:Does an entity require a degree of internationalpersonality to enable it to perform its functionseffectively? If so, how much o f legal personality shouldit be attributed to? If the protection of national ortransnational enterprises is achieved by certainprincipal mechanisms to ensure access to resources,freedom o f activity, and settlement o f disputes, with anacceptably corresponding level of internationalresponsibility for the adverse consequences o f theiractivities, is it not an adequate recognition o f their legalpersonality? Indeed, the "freedoms" of access andactivity must be exercised with due regard to the rightsof others and the essential interests o f nations (peoples)whose resources are directly involved. And no freedomwithout responsibility and liability.Further the role played by private enterprises mustbe subjected to substantive, rather than a formalistic,assessment. Control and power wielded and exercisedby these enterprises, both nationally and internationally,are of awesome order, having little correlationship withthe responsibility they are obligated to fulfil. Therefore,asking for an equation o f formal status with states forthese enterprises is like having the cake and eating ittoo. The private enterprises must be made to realizetheir social responsibility both domestic as well asinternational corresponding to the access to resources,markets and profits they enjoy deriving from thenational and international legal and economic order.In addition to the space activities identified, the issueso f space insurance should also be examined. Theseissues include the nature o f international insurancemarket, and modes of disputes settlement.Appropriate disputes settlementmechanismSince the 60's, there has been an increasing recognitiono f the need for international disputes settlementmechanisms participated by the enterprises involved intransnational activities. The Permanent Court ofArbitration came up with a set o f rules of procedure forarbitration o f disputes between States and non-Stateentities. The 1965 World Bank Convention on theSettlement of Investment Disputes coupled with WorldBank sponsored investment agreements with statesmade arbitration of disputes between states and privateenterprises quite normal. These developments tookplace, in addition to the role played by non-state disputesettlement mechanisms like the ICC arbitration facility.The UNCITRAL came up with model rules forconciliation and arbitration. Indeed, at the domestic lawlevel, in these days of increasing globalization andliberalization the law has now started promotingconciliation and arbitration to resolve commercialdisputes, by even reducing the role of the judiciary tothe minimum.It is against this background that the issue ofinternational settlement mechanism or mechanisms forspace activities should be considered.
POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATION193One of the recent examples of a dispute settlementmechanism to which private enterprises have a directaccess is the Law of the Sea Tribunal. While this mayserve as a model for resolution o f space activities, therecan be overlapping claims to jurisdiction by almostevery international organization having a role in spaceactivities, and more importantly by WTO. Thissituation may need to be remedied.Furthermore, WTO disputes settlement body(D&B) itself needs to be reviewed. There was atendency on the part o f the GATT DSB to decline to sitin judgment over the legality of unilateral actions ofStates in derogation of the principle of freedom ofinternational Trade which only remotely connected withthe justifications or exceptions claimed (Article XXI).WTO DSB should be formally transformed into atribunal and it should have the power to adjudicateupon such matters as the ICJ did in the Nicaragua Case(1986). Indeed, WTO DSB need not be bound byGATT DSB’s precedents on such matters, since WTODSB’s decisions are binding on parties, whereas theGATT DSB’s decisions were recomendatory in nature.Summary ReportMajor IssuesThe session recognised that significant changes anddevelopment in outer space activities, having particularregard to satellite communication, launching servicesand remote sensing, gave rise to the need of adequateinternational regulatory frameworks in view o f thecommercialisation and privatisation o f these activities;Noted that the first main aspect of the problemconcerns the role and legal status o f non-space actors;Noted that national or multinational enterprises areformally not subjects o f international law and they arenot parties to multilateral and bilateral international lawTreaties;Recognised the need to expand the role of theprivate enterprises in international law and in particularin international economic law through a more integratedapproach in law-making process;Noted that the second aspect o f the problemconcerns the need of an appropriate dispute settlementmechanism.RecommendationsRegarding possible international regulatoryframeworks, including legal conflict resolution, inexpanding space commercialisation it is recommendedto UNISPACE III:1. that UNCOPUOS and UNOOSA strengthentheir coordination with other relevantinternational organisations, particularly ITU,WTO and WIPO as well as with UNCITRAL;2. that UNCOPUOS and UNOOSA provideefficient means for input from and exchangewith private industry and its relevantinternational institutions such as theInternational Chamber of Commerce;3. that UNCOPUOS and UNOOSA startconsideration of elaborating an efficientmachinery for the settlement o f legal disputesarising in relation to space commercialisation.This consideration should take into account:a) the Revised Draft Convention on thesettlement o f Disputes Related toSpace Activities adopted by theInternational Space Law Committee ofthe International Association (ILA ),which deals with disputes involvingStates, international organisations, andprivate enterprises;b) existing Arbitration Rules used ininternational business practice for
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ST/SPACE/2Office for Outer Space Af
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IntroductionThe Workshop on Space L
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CONCLUSIONS AND PROPOSALS OF THEWOR
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3between public and private law and
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SESSION ONEExisting United Nations
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EXISTING UNITED NATIONS TREATIES: S
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EXPANDING GLOBAL LAUNCH SERVICESSES
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48low earth orbit. This commercial
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SESSION FOURExpanding Global Remote
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EXPANDING GLOBAL REMOTE SENSING SER
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Page 203 and 204: SESSION EIGHTMaintaining the Space
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Page 229 and 230: 223Annex IITHIRD UNITED NATIONS CON
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